Court File and Parties

COURT FILE NO.: CV-15-534729 DATE: 20190417

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ALLAN D’SOUZA and LORRAINE D’SOUZA Plaintiffs – and – HOME DEPOT OF CANADA INC. and HD ROOFING INC. Defendants

Counsel: R. Kostyniuk, for the Plaintiffs S. Setrakian, for the Defendants

– and – 1886466 ONTARIO INC. o/a NEWFOUNDLAND ROOFERS Third Party

Counsel for Third Party: C. Dearden and A. Cheng, for the Third Party

HEARD: October 1, 2, 3, 4, 5, 9, 10, 11, 12, 15, 16, and 18, 2018 and by written submissions filed November 23, December 10 and 21, 2018

REASONS FOR DECISION

H. McArthur J.

A) Introduction

[1] In September 2013, Lorraine and Allan D’Souza entered into a contract with Home Depot of Canada Inc. (“Home Depot”) to have their roof redone by the company’s service provider, HD Roofing Inc. (“HD Roofing”). For a number of reasons, the job was delayed until June 27, 2014. When the roof job was finally undertaken, HD Roofing used a subcontractor, Newfoundland Roofers, to do the job.

[2] Unfortunately, there were several deficiencies in the roofing job completed by Newfoundland Roofers. Home Depot offered to fix the issues. Home Depot also gave the D’Souzas a full refund.

[3] Ultimately, the D’Souzas did not allow Home Depot to fix the issues. Instead, in October 2014, the D’Souzas hired another roofing company, Let It Rain, to do emergency repairs. Let It Rain then redid the entire roof in October 2015.

[4] The D’Souzas claim that the representative for Home Depot and HD Roofing who sold them the roofing job misrepresented what they were being sold. The D’Souzas also allege that the roofing job was negligent and led to significant water damage in their home. They argue that they are entitled to general damages for mental distress, as well as aggravated and punitive damages. Mr. D’Souza also claims that he suffered income loss, for which he is entitled to be compensated.

[5] The defendants, Home Depot and HD Roofing, counter that there were no misrepresentations: there was no breach of contract and the D’Souzas got what they were promised and what was specified for in the contract. The defendants and the third party, Newfoundland Roofers, [1] agree that the roofing job was deficient and thus negligent. They argue, however, that the negligence did not cause the damages claimed by the D’Souzas. If the negligence did lead to any damages, they submit that this is in large part because of the D’Souzas’ failure to mitigate by refusing to allow Home Depot to fix the deficiencies. They also take the position that the D’Souzas have failed to make out their claim for other damages. The D’Souzas, they argue, are not seeking to be put in the same place they would have been but for the deficient roofing job; rather, they are seeking a windfall.

[6] All parties agree that the issues in this case are primarily factual. Whether the D’Souzas prevail in this action turns largely on my assessment of their evidence, as well as my assessment of the evidence of the numerous experts who testified. For the reasons set out below, I have determined that the D’Souzas have established that they are entitled to damages in the amount of $5,772.38 ($5,108.30 plus $664.08 HST).

[7] I do not intend to detail the facts at the outset, but will instead refer to them as necessary in my analysis. I will deal first with the claims of misrepresentation and breach of contract. Then I will consider the damages to the D’Souzas’ home that they claim they suffered as a result of the negligent roofing job. Finally, I will consider the D’Souzas’ claim with respect to other damages.

B) Analysis

Claims of Misrepresentation and Breach of Contract

[8] Michael Kronen is the roofing estimator for Home Depot and HD Roofing who sold the D’Souzas their roofing job. The D’Souzas claim that Mr. Kronen misrepresented what he sold them in three ways. First, they argue that Mr. Kronen promised that they were getting the “Golden Pledge Warranty” and the products necessary for the Golden Pledge Warranty, such as a drip edge, but instead he sold them a lower-end warranty. Second, the D’Souzas claim that Mr. Kronen falsely promised that that they were getting a new skylight for the initial price, rather than having the existing skylight resealed. Third, the D’Souzas claim that Mr. Kronen led them to believe that the roofers would be from Home Depot, not subcontractors.

[9] For the reasons set out below, I do not accept the D’Souzas’ evidence about the alleged misrepresentations made by Mr. Kronen. I will address each alleged misrepresentation in turn.

a) The Golden Pledge Warranty

[10] The D’Souzas testified that Mr. Kronen told them that they would be getting the Golden Pledge Warranty, the most extensive roofing warranty available. The contract entered into by the D’Souzas, however, clearly provides for a “Systems Plus Warranty”, which is a lower-end roofing warranty. Mr. Kronen was adamant that he did not promise the D’Souzas a Golden Pledge Warranty. Indeed, he explained that Home Depot does not even offer the Golden Pledge Warranty.

[11] The D’Souzas argue that Mr. Kronen is not credible. In particular, they say his evidence is implausible because he claimed to know nothing of the Golden Pledge Warranty. This makes no sense, they say, as Mr. Kronen would of course learn about products being offered by his competitors. The difficulty with this submission, however, is that was not his evidence. Mr. Kronen said that he knew about the Golden Pledge Warranty, but that he had not read the specific brochure referenced by counsel because he did not sell that warranty.

[12] I found Mr. Kronen to be highly credible when he testified that he did not offer the D’Souzas the Golden Pledge Warranty for two reasons. First, as noted, Home Depot does not offer the Golden Pledge Warranty. I find it difficult to accept that Mr. Kronen would offer a product that he knew Home Depot did not even offer.

[13] Second, the contract specifically provided for the Systems Plus Warranty. If Mr. Kronen had improperly promised the Golden Pledge Warranty, he was taking a huge risk that his ruse would be discovered if the D’Souzas read the contract. Indeed, since many people read contracts before they sign them, he was taking a risk that the gig would be up before the papers were even signed. There is no dispute that the D’Souzas were highly active in asking questions leading up to the formation of the contract. Given this, Mr. Kronen would have no reason to think that they would not be interested enough to read the contract before signing it. It is difficult to accept that Mr. Kronen would take such a big gamble.

[14] The D’Souzas, of course, claim that they did not read the contract. But, I have difficulty accepting their evidence on this point. As it relates to Ms. D’Souza, I do not accept that she failed to read the contract for four reasons.

[15] First, Ms. D’Souza’s evidence on whether she read the contract seemed inconsistent with how she had approached the roofing job. According to her, she was quite knowledgeable as she had started researching new roofs long before they entered into the contract. She said that she had compared many different roofers before settling on Home Depot. Given the time and effort that Ms. D’Souza said she spent learning about roofing and roofing products, it seems odd that she would enter into the contract without reading it over to ensure that she was getting what her research told her that they should get.

[16] Second, in my view, Ms. D’Souza came across as evasive when answering questions about whether she read the contract. She was asked repeatedly in cross-examination if she read the contract. It was a simple question. Yet, over and over again, Ms. D’Souza failed to answer. She equivocated. She gave long non-responsive answers. She dissembled.

[17] Third, Ms. D’Souza’s evidence on whether she was able to read the contract changed and evolved. When she was first asked, Ms. D’Souza said that while the print on the contract was faint, it was readable. She agreed that it was legible. She agreed a number of times that she could read it. She claimed, however, that she did not understand and needed an explanation of what the terms meant. Later in cross-examination, Ms. D’Souza was referred to a number of items in the contract that were inconsistent with what she said she had been offered. She then claimed that she could barely read the contract and was having difficulty reading the print. Later still, when being asked if certain items had been ticked off, Ms. D’Souza claimed that it was illegible. This contradicted her earlier evidence that it was legible. Moreover, I looked at the document both at the time Ms. D’Souza claimed it was illegible and after. Her claim that it is illegible is not borne out in a review of the document. Further, she then added, for the first time, that she could not read Mr. Kronen’s handwriting, and that she specifically told Mr. Kronen that she could not read his writing. I note this allegation was never put to Mr. Kronen. In any event, the variation in Ms. D’Souza’s evidence on this point undermines her credibility.

[18] Fourth, Ms. D’Souza’s evidence about the document itself changed. Initially she agreed that the document signed by her husband on September 25, 2013 was the contract they entered into with Home Depot. Later in her evidence, when she was confronted with the fact that the contract clearly provided for a Systems Plus Warranty, she suddenly said that the document was not a contract; it was simply Mr. Kronen’s ordering sheet. Indeed, she went further and claimed that Mr. Kronen specifically told them that it was his ordering sheet. Again, this allegation was never put to Mr. Kronen. Later still, Ms. D’Souza claimed that they asked Mr. Kronen to explain the contract and to break it down for them, but he said it was nothing; it was simply his own form. When confronted with all of the other items that she claimed Mr. Kronen told her they were getting, which were not set out in the contract, Ms. D’Souza again claimed that it was simply an “internal” paper. Ms. D’Souza’s changing evidence raises some concerns about her credibility.

[19] Similarly, Mr. D’Souza claimed that he did not read the contract. For the following three reasons I do not accept his evidence.

[20] First, Mr. D’Souza initially said that he did not read the contract “entirely”. This answer suggested that he had read parts of the contract. Yet when he was questioned about important aspects of the contract, he claimed not to have read anything that was put to him. He claimed not to have read that the contract provided for a Systems Plus Warranty; or that the contract provided for resealing rather than replacing the skylight; or that the contract did not provide for a drip edge. Many of the portions of the contract he claimed to have not read were not part of the standard form contract, but were specifically dealing with what the D’Souzas ordered. It seemed overly convenient that Mr. D’Souza had failed to read the important individualized parts of the contract. It begs the question: if he did not read those parts of the contract, what parts did he read?

[21] Second, Mr. D’Souza’s claim to have not read these individualized aspects of the contract seemed inconsistent with the fact that he initialed each section of the “Proposal and Agreement for Roofing Installation”. He initialed the section that provided for the Systems Plus Warranty. He initialed the section that provided for resealing rather than replacing the skylight. He initialed the section that made clear they were not getting a drip edge. Mr. D’Souza testified that because Mr. Kronen was so “comprehensive” in explaining what they were getting, that he trusted him and simply signed. I note that this contradicts Ms. D’Souza’s evidence that Mr. Kronen did not explain things to them, even when they asked him to. But putting aside this inconsistency between the D’Souzas, I find it difficult to believe that Mr. D’Souza would sign and initial the document if he did not read it.

[22] Third, when Mr. D’Souza was pressed in cross-examination, he suddenly claimed that Mr. Kronen may have asked them to sign the contract before it was filled out and that Mr. Kronen may have filled it out later when not in their presence. This answer undermines Mr. D’Souza’s credibility. I cannot accept the late breaking suggestion that Mr. Kronen may have had the D’Souzas sign the contract before it was filled out, especially given that Mr. D’Souza initialed several parts of the contract. I also note that it was never put to Mr. Kronen that he filled out the paperwork in the absence of the D’Souzas.

[23] In my view, Mr. Kronen’s denial that he offered the Golden Pledge Warranty was credible. Unlike the D’Souzas, there was nothing that really undermined his evidence on this point. I accept his evidence and find that the D’Souzas have failed to establish that Mr. Kronen promised them a Golden Pledge Warranty.

b) The Skylight

[24] Ms. D’Souza claimed that Mr. Kronen told them that they would be getting a new skylight, and that this was included in the initially agreed upon price for the roof job. Taking into consideration a 15% discount offered by Home Depot, this amounted to $8,627.21 ($7,634.70 plus HST). [2] Later, the D’Souzas learned that the contract only provided for resealing and not replacing the skylight.

[25] Mr. Kronen testified that the skylight was not included in the original price, and that he never told the D’Souzas that it was included. This is borne out in the contract, which clearly provides for resealing the skylight, not replacing the skylight. I cannot accept the D’Souzas’ evidence that Mr. Kronen told them they were getting a new skylight, as the contract clearly specifies otherwise. As with the warranty, if Mr. Kronen promised the D’Souzas a new skylight, he was taking a huge risk that his fraud would be discovered as soon as the D’Souzas read the contract, which clearly said the skylight was to be resealed, not replaced. While the D’Souzas claim that they did not read the contract, for the reasons set out above, I do not accept their evidence on this point.

[26] Further, after the initial contract was signed, Mr. D’Souza signed another contract, titled “Authorization for Change of Installation”, which specified that the D’Souzas would pay an additional $935 (plus HST) for a new skylight. [3] The fact that Mr. D’Souza signed a further work order, which called for a new skylight at this cost, also undermines the D’Souzas’ evidence that Mr. Kronen lied and told them that they would be getting a new skylight from the outset. I find it hard to accept that Mr. D’Souza would sign a contract agreeing to pay almost a thousand dollars, plus HST, for a new skylight, if he had been promised a new skylight in the initial price.

[27] Despite the fact that Mr. D’Souza signed a new contract agreeing to pay to replace the skylight, Ms. D’Souza maintained that they had been promised a new skylight and that there was to be no additional cost for it. She said that the form her husband signed was not an agreement to pay for a new skylight, rather, her husband signed the form to get the “ball rolling”.

[28] Both D’Souzas claimed that an email sent by Mr. Kronen on October 17, 2013 at 10:12 a.m. establishes that they were to get the skylight for no extra cost. Mr. Kronen wrote the following:

Just want to follow up with you but as you probably already know from your contact with Reg, everything is set to proceed for the new skylight and the new 8” rigid exhaust vent will be included without any extra cost.

[29] In my view, a clear read of this email does not support the D’Souzas’ position that they were promised the skylight at no extra cost. And the emails leading up to the October 17th email also support the conclusion that Home Depot was only offering to provide the vent (a relatively inexpensive item) for no cost.

[30] Both D’Souzas, however, claimed that there were other emails showing that they were to get the skylight for free. But when pressed in cross-examination, neither D’Souza was able to produce any emails saying that the new skylight was to be included in the original price.

c) The use of subcontractors

[31] The D’Souzas argue that they were misled by Mr. Kronen, who caused them to believe that he was a Home Depot estimator, when he was actually with HD Roofing. I cannot accept this argument. Mr. Kronen’s business card clearly identified him as working with HD Roofing, and that he was an “Authorized Installer/Service Provider for Home Depot of Canada Inc.” His card also noted that he was “Engaged as an independent subcontractor”.

[32] Further, the D’Souzas claim they were told that the actual roofing work would be done by Home Depot, and they were never advised that HD Roofing or other subcontractors would be used. I cannot accept this argument. The contract clearly provided that the service provider was HD Roofing. Moreover, the contract specified that Home Depot or its agents were authorized to arrange for an “independent contractor” to provide the installation services. Contrary to the submission of the D’Souzas, in my view there was no ambiguity in the contract. Given that, I find it difficult to accept that Mr. Kronen would tell them that subcontractors would not be used when the contract clearly provided for such workers.

[33] I now turn to my analysis with respect to the D’Souzas’ claims in respect of damages to their home related to the negligent roofing job.

Claims of Damages to the Home Related to the Negligent Roof Job

[34] To succeed in an action for negligence, a plaintiff must prove the following four elements on a balance of probabilities: (1) that the defendant owed him or her a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff suffered damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3.

[35] In this case, there is no dispute that Home Depot, HD Roofing and Newfoundland Roofers owed a duty of care to the D’Souzas. Nor is there any dispute (given the deficiencies in the roofing job) that they breached that duty of care. Further, it is agreed that the D’Souzas have suffered damage. The real issue is whether the D’Souzas have established that the damages they claim to have suffered were caused by the negligent roof job. The basic test for determining causation is the “but for” test: Resurfice Corp. v. Hanke, 2007 SCC 7, at para. 21. To succeed in their claims, the D’Souzas must establish that “but for” the negligence of the roofing job, the damages they allege would not have occurred.

[36] The D’Souzas claim that they have suffered extensive damage to the interior of their home as a result of the negligent roofing job. The also claim that they should be compensated for what has been referred to as the “Let It Rain costs” (the expense to have Let It Rain replace the roof and conduct other repairs). I propose to first address the damages claimed with respect to the interior of the home, before turning to my assessment of the claim in relation to the Let It Rain costs.

1) The Interior of the Home

(a) The en suite bathroom

[37] The D’Souzas allege that the negligent roofing job led to significant leaking into their en suite bathroom and that they have suffered serious water damage as a result. Indeed, the D’Souzas testified that the bathroom is so damaged they cannot use it.

[38] As set out below, I find that with the exception of the leaking skylight and ceiling, the D’Souzas have failed to establish that any damage in the en suite was caused by the negligent roofing job. I will address the specific individual damages claimed regarding the en suite in turn.

(i) The skylight and ceiling

[39] There is no dispute that the negligent roofing job contributed to leaking in the skylight in the en suite. Terrence Smith, with T. Smith Engineering Inc., was an expert called by the defendants. He was qualified to give an opinion in damage assessment and remediation in residential buildings. Mr. Smith testified that the negligent roofing job would have exacerbated any pre-existing leaking issue with the skylight.

[40] But whether the skylight was leaking before the roofing job is a subject of controversy. Both D’Souzas vigorously denied that there was any pre-existing leak. The defendants and the third party counter that the evidence overwhelmingly establishes that there was a leak. This is an important issue. If the skylight was leaking before the roofing job, that would affect to what extent the D’Souzas are entitled to be compensated for damages to the ceiling caused by the leaking skylight.

[41] For the following four reasons, I find that the skylight was leaking before the roofing job in June 2014.

[42] First, in August 2013 the D’Souzas contacted their insurance company about a leaky roof. The insurance company sent Gable Aluminum & Roofing (“Gable”) to conduct an inspection. A letter dated August 30, 2013, which was admitted to be used substantively, noted that there was a “leak in bathroom on ceiling around skylight and from the bathroom exhaust fan.”

[43] The D’Souzas both claimed that Gable got it wrong; the only leak was from the exhaust vent. It seems difficult to accept, however, that Gable would say that the skylight was leaking if it was not. This is particularly so, as the letter went on to detail a number of difficulties with the skylight, including the following: 1) the shingles around the skylight had been replaced once and the shingles above it had been replaced at a different time; 2) a back pan had been added to the skylight and the skylight had been caulked since; 3) there was a torn tab just over the top of a butt joint that was “obviously leaking”; and 4) the skylight appeared to have been improperly installed. In my view, there would be no reason for Gable to have noted all of the issues with the skylight if there was no leak from the skylight.

[44] Second, Gable took a photograph of the en suite ceiling. That picture has a yellow arrow pointing to what appears to be damage on the ceiling near the skylight, as well as an arrow pointing to the area of the exhaust fan, with a note saying “dripped out of exhaust fan too”. In my view, this strongly suggests that Gable found leaks from both the exhaust fan and the skylight.

[45] Third, Gable put a tarp over the skylight. That tarp remained there until the roofing job took place in June 2014. Mr. Kronen testified that Mr. D’Souza told him that the tarp was on the roof because of concerns regarding leaking. Mr. D’Souza, however, claimed that the tarp was simply for peace of mind, because some shingles had curled on the roof due to wind. I find this hard to accept. Ms. D’Souza testified that she enjoyed the light from the skylight. Indeed, despite her professed concerns about mold, she said that she generally left the door to the en suite open to get the natural light. Given that, it seems odd that the D’Souzas would agree to have a tarp put over the skylight, thus cutting off that source of natural light, unless there were issues with leaking. Moreover, Ms. D’Souza failed to say anything at all in her testimony about the tarp. Mr. D’Souza neglected to say anything about the tarp until it was put to him in cross-examination. I find that the evidence regarding the tarp undermines the D’Souzas’ credibility with respect to whether the skylight had been leaking before the roof job.

[46] Fourth, the picture taken by Gable shows what appears to be a fairly distinctive pattern of damage on the ceiling near the skylight in the en suite. The photo is contained at page 6 of the Joint Document Brief, which was filed as Exhibit 1. A brighter copy of the same photo was also tendered as Exhibit 13.

[47] A similar pattern of damage can be seen in pictures taken of the ceiling on June 9, 2015 by Mr. Derek Francis, with Maltman Group International (pages 51 and 52 of Exhibit 1) and photos taken on April 6, 2018 by Mr. Smith (pages 131 and 132 of Exhibit 1). Both Mr. Francis and Mr. Smith testified that that these photos depict the water damage that they saw by the skylight.

[48] The photos of the water damage to the ceiling in the en suite are important, as a comparison of the photo taken by Gable with the photos taken by Mr. Francis and Mr. Smith supports a finding that the skylight was leaking before the roof job, and that it was leaking sufficiently to cause damage.

[49] Moreover, the photos, and the D’Souzas’ testimony regarding same, undermine the credibility of the D’Souzas’ evidence denying that the skylight had leaked before the roofing job in June 2014. Ms. D’Souza was shown the picture taken by Gable and denied that she could see any damage at all. The pattern of damage, however is clearly visible in the photo. This is particularly so in the brighter version of the photo marked as Exhibit 13. In my view, Ms. D’Souza’s evidence on this point was unbelievable.

[50] Mr. D’Souza’s credibility was also undermined by his evidence regarding the photos and whether there was pre-existing damage caused by the skylight leaking, as his evidence changed over the course of his testimony. At first Mr. D’Souza said that while he could see marks on the ceiling in the picture taken by Gable, the marks were different from those depicted in the photos taken by Mr. Francis and Mr. Smith. After further questioning, he admitted that the marks did appear to be the same, but said that he did not see any damage at the time that Gable came to investigate. Mr. D’Souza then suggested, for the first time, that Gable had potentially caused the damage to the ceiling with their ladder. Later in his evidence, he began to describe the marks on the ceiling depicted in the picture taken by Gable as scratches, not damage, seemingly to bolster his claim that the marks on the ceiling were caused by the ladder, not water. I found Mr. D’Souza’s evolving evidence on this point to be unbelievable and concerning.

[51] Moreover, given how fastidious the D’Souzas clearly are about their home, it seems difficult to accept that they would not have vigorously raised with Gable any damage to their home caused by Gable. Upon further questioning, Mr. D’Souza said that he may have contacted Gable to complain that they scratched his ceiling, but he could not recall. I found this evidence problematic, as it seemed that if Mr. D’Souza had complained to Gable that they damaged his bathroom ceiling, he would have remembered. In any event, there is no evidence that any such complaint was made. Indeed, on the evidence before me, it appears that the allegation that Gable may have caused the damage to the ceiling was raised for the first time in cross-examination of Mr. D’Souza. In my view, this undermines Mr. D’Souza’s credibility.

[52] The photo taken by Gable establishes that there was water damage to the ceiling by the skylight before the roofing job. The D’Souzas’ implausible testimony regarding that photo undermines their credibility about whether there was a pre-existing leak.

[53] Thus, looking at the evidence in its totality, I do not accept the D’Souzas’ evidence and I find that the skylight was leaking before the roofing job in June 2014. That said, Mr. Smith said that the negligent roof job would have exacerbated the damage caused by the leaking skylight. Given that, I find that the D’Souzas are entitled to damages in the amount of $925.19 ($818.75 plus HST) to account for 25% of the estimated cost to have Let It Rain fix the ceiling damage caused by the leaking skylight in the en suite bathroom.

(ii) The sink

[54] The ceramic sink in the D’Souzas’ en suite bathroom has a number of chips. The D’Souzas claim that the chips happened when debris such as nails and old shingles fell through the area of the skylight while the roofing job was being done in June 2014.

[55] I do not accept their evidence on this point for the following three reasons.

[56] First, the D’Souzas clearly care a great deal about their home. As they both testified, their home is kept in impeccable shape. Further, the evidence establishes that they were not shy about raising complaints about the roofing job. Yet nowhere in the numerous emails that they sent after the roofing job was done did they ever complain about damage to their sink. The failure of the D’Souzas to raise any issue about a chipped sink in the days, weeks and months following the roofing job undermines their claim that the damage happened during the roofing job.

[57] Second, in July 2014, Mark Diplock with Mike Holmes Inspections went to the D’Souzas’ home to identify and document any issues that arose from the roofing job. While Mr. Diplock noted damage to the ceiling of the en suite bathroom, he did not note anything about damage to the sink. Again, the D’Souzas were not shy about pointing out any issues related to the roofing job and Mr. Diplock was specifically retained by them to identify any such issues. I thus find it difficult to accept that they would not have pointed out a damaged sink to Mr. Diplock. Similarly, when Mr. Francis went to their home in 2015, he did not make a note of any damage to the sink. The fact that two different individuals, both tasked with identifying and noting damage caused by the roofing job, did not mention any damage to the sink, makes me further question whether the damage was caused by the roofing job.

[58] Third, Mr. Smith testified that the damage in the sink could not have been caused by falling debris as alleged by the D’Souzas. As he noted, the sink was not underneath the skylight well. I found his evidence to be credible. Contrary to the argument of the plaintiffs, in my view Mr. Smith did not come across as an advocate. I reject completely the suggestion that he was a hired “gunslinger.” In my view, Mr. Smith seemed to be trying to answer the questions posed in an objective, impartial and fair manner. For example, although it seemed clear that the skylight had been leaking before the roofing job, Mr. Smith concluded that the roofing job exacerbated the issue. If he was acting as an advocate, he could have easily tried to pass off all of the damage in that area to the initial leak.

[59] Even without Mr. Smith’s evidence on this point, it seems clear from the photographs tendered that it would have been virtually impossible for debris to fall down the skylight well and then somehow ricochet over to the sink.

[60] Thus, I find that the D’Souzas have failed to establish that any damage to their sink was caused by the roofing job.

(iii) The bulkhead over the shower

[61] The D’Souzas testified that as a result of the roofing job, the bulkhead over their shower has become bowed or wavy. Mark Noonan from Plumbing Mart and Leonard Scomparin of Lakeshore Custom Homes both examined the en suite and confirmed that this area of the shower had these issues. Both testified about the costs to repair the shower bulkhead. Neither Mr. Noonan nor Mr. Scomparin, however, testified that the issues they observed in the shower bulkhead were related in any way to the roofing job.

[62] Mr. Smith testified that when he examined the home in April 2018, he did see some waviness to the bulkhead. However, Mr. Smith said that he did not find any discolouring, staining, detachment of or blistering of paint in that area, which one would expect to see if there was water intrusion. Nor did he see any cracking to the grout or detached tiles in the tub area, which would be expected if there was water intrusion from the roof. He saw no signs of damage to the tub. Mr. Smith explained that the waviness he observed in the bulkhead was consistent with the original construction.

[63] Further, Mr. Smith looked at an infrared image of the ceiling taken by Mr. Diplock. As he explained, sometimes water damage that is not visible to the eye can be uncovered using thermal imaging. Mr. Smith testified that the thermal image shows that the bulkhead area was not wet, unlike the area of the ceiling where the skylight was leaking. A review of the photo image supports Mr. Smith’s evidence.

[64] In my view, the D’Souzas have failed to establish on a balance of probabilities that any bowing or waviness in the bulkhead was caused by the negligent roofing job.

(iv) The floor tiling and grout

[65] Mr. Scomparin testified that the floor in the en suite should be removed and redone as the floor was uneven and the grout was disintegrating. Mr. Scomparin, however, did not provide any evidence that the issues he saw in the floor were connected to the roofing job.

[66] Mr. Smith confirmed that there was cracking in the grout with the floor tiles, and testified that there were sections of grout missing. That said, he concluded that this damage did not occur because of water damage. As he noted, this type of grout is meant to get wet. Further, he explained that if there had been water damage on the floor, one would expect to see swelling and deforming at the quarter round, baseboards and right corner of the vanity, as well as a pulling away from the wall, creating a gapping effect. But he saw no such damage.

[67] Mr. Smith further explained that typically any damage to the subfloor will be evident if you lift the heat register. When Mr. Smith took the heat register off, he did not see any indication of water damage. Mr. Smith concluded that the damage to the grout was caused because of aging and the materials shrinking and expanding from winter to summer.

[68] The D’Souzas take great issue with Mr. Smith’s opinion, as he did not use a level to measure the floor. Contrary to the assertions in paras. 129 and 135 of their written submissions, however, Mr. Smith did not fail to bring a level to their house. As Mr. Smith noted, he had a small level in his bag and a bigger level in his car. Mr. Smith, however, did not see any need to use a level in this case. The D’Souzas argue that this undermines his evidence. In my view, however, the fact that Mr. Smith did not measure the floor with a level is of no moment in this case. The issue was whether the floor was damaged by water intrusion. Mr. Smith found that it was not. In my view Mr. Smith’s evidence came across credibly. His conclusion seemed amply supported by the photographic evidence.

[69] Looking at the totality of the evidence, I find that the D’Souzas have failed to establish on a balance of probabilities that any damage to the floor in the en suite was caused by the roofing job.

(v) The toilet

[70] Ms. D’Souza claims that as a result of the damage from the roofing job, the toilet in the en suite is wobbly and rocks. Mr. D’Souza did not testify about any such issues with the toilet, instead, he said that the toilet had to be replaced because it would be difficult to match the new tiles they needed for the floor with the toilet. As noted above, however, I have found that the D’Souzas have failed to establish that any issues with the floor tiling were caused by the roofing job.

[71] Further, Mr. Diplock, Mr. Francis, Mr. Noonan and Mr. Scomparin all testified and none of them advised that they saw any issues with the toilet. If there had been such damage to the toilet that it needed to be replaced, it seems that at least one of these witnesses would have noted it.

[72] Moreover, Mr. Smith specifically testified that the D’Souzas never told him that the toilet rocked or was wobbly, as if he had been advised, he would have made a note of it. I note that Ms. D’Souza unsuccessfully sought leave to call reply evidence to testify that she did, in fact, tell Mr. Smith about the wobbly toilet. Even if I had allowed her to testify in reply on this point, however, I would still have accepted Mr. Smith’s evidence. He was specifically tasked with noting damage, and I find it difficult to believe that he would have failed to note that Ms. D’Souza had raised issues about the toilet. In any event, Mr. Smith also said he did not see any visual evidence of damage to the toilet. When asked about the rocking toilet testified to by Ms. D’Souza, he explained that this was consistent with the wax ring used to install the toilet drying out and losing elasticity over time. He explained that a rocking toilet could generally be fixed by tightening the existing nuts and bolts, or if that did not suffice, removing the toilet and installing new nuts and bolts.

[73] To the extent that I accept that the D’Souzas’ toilet was wobbly when used, the reason for why that would be is unclear. There is certainly insufficient evidence to say that any rocking or wobbling of the toilet would be linked to the roofing job. The D’Souzas have failed to establish on a balance of probabilities that any issues related to the toilet were caused by the negligent roofing job.

(vi) The vanity

[74] It was unclear to me what damage the D’Souzas allege was caused to the vanity in the en suite by the roofing job. While Mr. D’Souza testified that the vanity was “probably” damaged, he did not say that he had actually seen any damage to the vanity. Neither Mr. Noonan nor Mr. Scomparin testified that the vanity was damaged.

[75] Mr. Smith specifically examined the vanity and testified that he did not see anything consistent with water damage. He explained that if water had been hitting it, he would have expected to see swelling at the edges of the countertop and detached lamination. He would also expect to see damage at the base of the wall near the cabinet. Yet he said no such damage was visible.

[76] I have looked at the numerous pictures taken of the vanity. I do not see any areas that appear damaged.

[77] Thus, I find that the D’Souzas have failed to establish that the vanity was damaged at all, let alone that any damage was caused to the vanity by the roofing job.

(vii) Mold

[78] Only one witness, Mr. Noonan, testified that there was mold in the en suite bathroom. Unfortunately, I have some concerns about the credibility and reliability of his evidence regarding mold.

[79] At first, Mr. Noonan said that the en suite bathroom had to be gutted because there was mold behind the drywall. When asked how he knew there was mold, he said that he “saw” it. But later Mr. Noonan noted that it was hard to estimate the cost of labour, because “if” there was mold behind the drywall it would take more work. He also said that you would not know if there was mold until the drywall was removed. The mold, he said, could be a “surprise” that would elevate costs. These responses seemed inconsistent with his earlier evidence that he knew there was mold because he had seen it.

[80] Later still, Mr. Noonan said the wall above the tub would be full of mold. When asked how he knew that, he said that since it was saturated with water, black mold “would” be in there, and “if there is” they would have to have someone in to do mold remediation. In my view Mr. Noonan’s evidence that if the area was saturated with water there would be mold is problematic for two reasons. First, despite the areas in the attic that were water damaged from the skylight leak, Let It Rain found no mold. Mr. Leveque from Let It Rain specifically testified that he found no mold in the attic or roof trusses and thus did not have to conduct any mold remediation. Thus, the fact that an area is wet does not inevitably lead to mold growth. Second, as discussed above, I accept Mr. Smith’s evidence that the area in the tub was not damaged from water intrusion. To the extent that Mr. Noonan’s opinion regarding mold was based on water intrusion into that area, I give that opinion no weight. In any event, his answers clearly suggested that he did not actually know if there was mold in the area above the tub, which is inconsistent with his initial evidence.

[81] I also note that Mr. Noonan agreed that he did not do any testing for mold, and if there was any mold, he could not say what kind.

[82] Finally, at the end of the day, even if I were to accept Mr. Noonan’s evidence that mold might potentially be discovered when the dry walling is done, this does not assist the D’Souzas in this litigation. They have the onus of proving their case. It seems that it would have been a fairly simple matter to remove some drywall to see if there was any mold behind. Yet they failed to take this basic step. The D’Souzas have failed to establish on a balance of probabilities that there is any mold in their en suite, let alone mold caused by the roofing job.

(viii) The overall usability of the en suite bathroom

[83] The D’Souzas called Mr. Scomparin and Mr. Noonan to support their position that they needed to gut and replace their bathroom. When asked what it would take to bring the en suite “to today’s standards”, Mr. Scomparin testified that he would recommend removing all the drywall, including the tiles on the floor to be completely replaced back to the ceiling and back to the wall studs. Mr. Scomparin said that he recommended gutting the en suite because the floor was uneven, the grout was disintegrated and the bulkhead in the tub area was going downward. He said the best case was to gut the bathroom and redo it with “fresh, clean drywall.” In cross examination, he said that he had looked at what it would cost to make it good by “today’s costings and standards”.

[84] The difficulty with Mr. Scomparin’s evidence is that the question is what damage was caused by the roofing job, not what it would take to bring an out-of-date bathroom up to today’s standards. There was nothing in Mr. Scomparin’s evidence that would suggest that the bathroom was unusable. In any event, I note that Mr. Scomparin did not testify that any of the problems he saw in the en suite were caused by or related in any way to the negligent roofing job.

[85] Mr. Noonan testified that an entirely new en suite bathroom was required because of mold. But as set out above, I do not accept his evidence that there was mold.

[86] Ms. D’Souza said they could not use the bathroom because of the mold as well as the “rot” and the “flaking paint.” But the pictures and the evidence of all of the witnesses who attended to look at the bathroom do not support that things were rotting or that there was paint flaking off in a disruptive way. Apart from concerns regarding mold, there seems to be no reason that the D’Souzas would not be able to use the bathroom. And as I have found, there is no credible evidence establishing that there was any mold in the en suite. To the extent that the D’Souzas had any concerns about possible mold, this could have been easily determined by removing some drywall to see if there is mold in there. It seems unreasonable to stop using a bathroom entirely, rather than check to see if there is mold in there.

[87] Moreover, I have difficulty accepting the D’Souzas’ evidence that they stopped using the bathroom. The photos tendered seem to suggest that, contrary to their evidence, the D’Souzas have been using the en suite bathroom over the last four years. There were photos taken of the en suite bathroom in 2015 and 2018. The Kleenex box shown in photos taken in 2015 is different from the Kleenex box in 2018. The rolls of toilet paper in the photos taken in 2015 are clearly different than the rolls of toilet paper shown in photos taken in 2018. In photos taken in 2018, the bath mat is off the floor and resting on the tub, as if to dry. When asked about the bath mat over the tub, Ms. D’Souza said the bath mat was for “aesthetic” reasons. That did not seem to make a lot of sense; if they simply wanted to make the bathroom look nice, why would the D’Souzas place the bath mat over the tub? Ms. D’Souza testified that she kept the bathroom looking as if it was in use in order to minimize her depression over the state of the bathroom. But in my view, Ms. D’Souza’s explanation does not really account for the differences in the bathroom that can be seen in the pictures taken in 2015 versus the photos taken in 2018.

[88] Further, and significantly, photos taken in both 2015 and 2018 show that the D’Souzas keep toothbrushes in the en suite. Ms. D’Souza claimed that they brush their teeth in the main bathroom, and simply store their toothbrushes in the en suite. In my view this explanation makes little sense. It would be inconvenient to store toothbrushes in a room where they are not being used. Moreover, it seems inconsistent with the D’Souzas’ testimony that they feared there was mold in the en suite. If they were truly worried about mold in the en suite, then it seems highly unlikely they would store their toothbrushes in there.

[89] The evidence suggests that the D’Souzas have continued to use their en suite bathroom.

(ix) Conclusion on the damage to the en suite bathroom

[90] As made evident from the testimony of Mr. Noonan and Mr. Scomparin, there were a number of things that could be done to bring the en suite into good shape. The difficulty, however, is that is not the issue. It was an older style bathroom, with obviously dated fixtures. Clearly, the en suite could be improved. The issue is what if any damage did the roofing job cause to the en suite. I have found that the only damage to the en suite affected by the negligent roofing job was the ceiling area by the skylight.

(b) The main bathroom

[91] The D’Souzas claim that the roofing job led to water damage in their main bathroom. While it is clear that there is damage in the bathroom, the issue is whether “but for” the negligent roofing job the damage would have occurred.

[92] Mr. Francis said that the damage could be from either water intrusion or condensation. His evidence does not assist the D’Souzas, as he did not say that it was more probable that the damage was from water intrusion as opposed to condensation.

[93] Mr. Smith, however, testified that the damage in the main bathroom appeared to be inconsistent with damage from a leaking roof. Instead, he found the pattern of damage to be consistent with condensation damage. Indeed, he noted that the damage appears to be “classic condensation damage”.

[94] In my view, Mr. Smith testified credibly. His explanation that the damage did not reveal the blistering and paint detachment one would expect to see from water intrusion is borne out in the photos of the damage.

[95] Looking at the totality of the evidence, I find that the D’Souzas have failed to establish on a balance of probabilities that the damage in their main bathroom was caused by the negligent roofing job. I am not satisfied that “but for” the roofing job, the damage in the bathroom would not have occurred.

(c) The dining room

[96] The D’Souzas claim that the deficiencies in the roofing job led to a significant water leak in their dining room.

[97] Both Mr. Noonan and Mr. Scomparin testified that there was an area of damage on the dining room ceiling and provided evidence as to how much it would cost to repair. Neither of them, however, provided any evidence that the damage was caused in any way by the negligent roofing job.

[98] Mr. Smith testified that the damage in the dining room was inconsistent with a leak from the roof. Indeed, he concluded that it would be “virtually impossible” for the water leaking in from the skylight to have caused the leak in the dining room. Using a laser distance meter, Mr. Smith was able to determine that the leaking in the dining room was right under the bathroom drain assembly. He explained that in homes of this age, it is not uncommon to find this kind of leak. In particular, the overflow tends to dry out, so that there can be leaks if the overflow is used. Mr. Smith noted that he was not authorized to conduct any tests that could lead to any further damage. This restricted his ability to fully investigate the cause of the leak in the dining room. Thus, he explained that while the evidence supported that the damage in the dining room was caused by the drain system of the tub, he could not say conclusively if it was from the overflow without further tests. That said, given the placement and appearance of the leak, he was confident that it was not related to the roofing job.

[99] I found Mr. Smith to be highly credible and I accept his evidence. I find that the D’Souzas have failed to establish on a balance of probabilities that any water damage to the dining room ceiling came from the negligent roofing job.

(d) The bedrooms

[100] The D’Souzas claim that as a result of the deficiencies in the roofing job, they suffered water damage on a wall in the master bedroom and on a wall in their son’s bedroom.

[101] According to Ms. D’Souza, the water damage to both bedrooms occurred a few months after the roofing job. She testified that in both rooms, the damage extends from corner to corner along one wall; the paint is blistered and cracked. According to Mr. D’Souza, within a month or two of the roofing job, there were small indications of damage to both bedrooms. The issue got worse and manifested into “massive” damage “right across” the walls of both bedrooms.

[102] I have difficulty accepting the D’Souzas’ evidence regarding the timing and extent of the damage to the bedrooms for four reasons.

[103] First, despite the fact that in 2014 and 2015 the D’Souzas sent numerous emails complaining about the deficient roof job, none of the emails refer to damage to the bedrooms. The D’Souzas were highly vocal and active in raising complaints with respect to the roof job. It seems odd that they would not have raised the damage to the bedroom in those emails if, in fact, it had occurred.

[104] Second, on June 9, 2015, Mr. Francis conducted an investigation at the D’Souzas’ home to document any damages and to provide an estimate for the cost of repairs. Although Ms. D’Souza testified that she showed Mr. Francis the damage in the bedrooms, he made no note of any damage in the bedroom. Mr. Francis went to the D’Souzas’ home for the express purpose of identifying and noting any damages. Given that context, I find that if Mr. Francis had been shown damage in the bedroom that had been allegedly caused by the deficient roof job, he would have noted it. [4] The fact that no damage was noted suggests that, contrary to the evidence of the D’Souzas, as of June 2015, the damage had yet to occur.

[105] Third, when Mr. D’Souza testified at examinations for discovery in October 2016, he failed to say anything about any damage they suffered in their bedrooms. When asked at trial about this omission, Mr. D’Souza attempted to explain his failure to mention damage to the bedrooms by saying that at the discovery, he was only testifying about “big” damage. This position, however, was inconsistent with his earlier evidence at trial that there was “massive” damage in the bedroom.

[106] Fourth, Mr. Smith went to the D’Souzas’ home on April 6, 2018 to conduct an inspection of the home. Mr. Smith was shown the damage in both bedrooms. He took photos of the damage, and in both rooms the damage appears minimal. Ms. D’Souza, however, claimed that the photographs did not depict the true damage suffered in the bedrooms, and said that she could take photos to show the court the true damage. Despite that, the D’Souzas did not tender any photographs that show that the walls suffered the “massive” damage claimed.

[107] Mr. Smith testified that the damage in the bedrooms was consistent with “ice damming”, and inconsistent with water damage from a leaking roof. He explained that ice damming was common and that it can occur even with a properly installed roof. Exhibit 39 is a sketch prepared by Mr. Smith when testifying that explains how ice damning occurs. I found that Mr. Smith testified in a credible and objective way. Again, I reject the suggestion that he testified as an advocate; to the contrary, in my view he testified in an objective, fair and impartial manner. I accept his evidence that the water damage in the bedrooms was likely caused by ice damming, unrelated to the roofing job.

[108] Even if I did not accept Mr. Smith’s evidence regarding ice damming, however, given the issues I have raised above with respect to the D’Souzas’ testimony about the timing and extent of the damage to the bedrooms, in my view they have failed to establish on a balance of probabilities that the deficient roof work caused the damage in the bedrooms.

[109] I turn now to my assessment of the D’Souzas’ claims in relation to the Let It Rain costs.

2) The Let It Rain Costs

[110] As noted above, in October 2014 the D’Souzas hired Let It Rain to do emergency repairs to their roof. Then in October 2015, Let It Rain redid their roof as well as doing other repairs. The D’Souzas now claim damages for the money they paid (or anticipate paying) to Let It Rain (minus the amount that they would have paid for the Home Depot roofing job).

[111] The defence agrees in written submissions that the D’Souzas can claim $565 for the emergency repairs done by Let It Rain. The defence also agrees that the D’Souzas are entitled $1,796.19, to account for the lost benefit of the 15% discount that they had with Home Depot. [5] Apart from that, the defence argues that the amounts claimed by the D’Souzas are not warranted, as they are for repairs for damages unrelated to the roofing job, or because the roof they purchased from Let It Rain contains numerous upgrades over the roof they contracted for with Home Depot.

[112] I agree. Before I explain why I have reached that conclusion, however, I want to highlight how the evidence with respect to the contract entered into with Let It Rain and the amount of money paid or owed to Let It Rain unfolded, as in my view it undermines the credibility of the D’Souzas.

Evidence Regarding the Money Paid or to be Paid to Let It Rain

[113] Ms. D’Souza testified in chief that she used her life savings to pay Let It Rain, yet was unable to say with any precision how much she paid. This seemed odd at the time, as it struck me that if someone was forced to use their life savings to pay to fix a botched roof job, they would clearly recall how much they paid. Moreover, it seemed strange that Ms. D’Souza would not have clarified and confirmed how much she paid Let It Rain before she testified. Ms. D’Souza’s testimony surrounding Let It Rain, however, became even more troubling as the evidence progressed.

[114] In examination in chief, Ms. D’Souza’s lawyer showed her a contract from Let It Rain, dated April 28, 2015 (Exhibit 2). The same contract was contained in the Joint Documents Brief, at page. 95, as it had been provided in the D’Souzas’ Affidavit of Documents. [6] This contract was not signed by either of the D’Souzas.

[115] The April 28 contract was for a total of $36,769.07, and set out the work that was to be done. This work included the following:

• $13,999 (plus HST) for a new roof on the house and garage;
• $2,175 (plus HST) for chimney work and inspection;
• $8,865 (plus HST) for insulation work and mold remediation;
• $4,225 (plus HST) for eaves troughs, downpipes and T-Rex; [7] and
• $3,275 (plus HST) for ceiling repairs.

[116] Initially, Ms. D’Souza said that they went ahead with all of the repairs suggested in the contract, except for having the eaves troughs done. At no time did she suggest that work set out in the contract was not required, or that there was another contract with Let It Rain. Ms. D’Souza’s evidence was then interrupted to accommodate other witnesses.

[117] Before she resumed her evidence, Bruno Levesque from Let It Rain testified. Mr. Levesque brought his entire file, which contained numerous documents touching on the repairs that had not been provided in the D’Souzas’ Affidavit of Documents. One of the documents that he brought was a contract dated July 15, 2015. Unlike the April 28 contract that had been provided in the Affidavit of Documents and shown to Ms. D’Souza in chief, this contract was signed by Ms. D’Souza. This contract, however, was for only $26,175.32 ($23,164, plus HST), which was almost $10,000 less than the one Ms. D’Souza had been shown in chief. There were two reasons for the lower price. First, the original estimate of $8,865 (plus HST) for insulation work and mold remediation had been reduced to $6,990 (plus HST) as it only covered insulation work. Second, the July 15 contract did not include any work for the eaves troughs or ceiling repairs. Under the special notes, the contract specified that work on the eaves troughs and ceiling would be done at a later date and for an extra cost.

[118] But, as it turns out, the actual price charged by Let It Rain was even lower than the estimated price set out in the July 15 contract. Mr. Levesque brought an invoice that showed that the estimated price of $6,990 had been reduced to $2,465. That is because when Let It Rain began its work, it determined that there was no need to vacuum out all the existing insulation, which led to a reduction in price of $2,650. Further, there was no need for any mold remediation, which led the price to be reduced by a further $1,875. This invoice was dated August 14, 2015 and had been paid by the D’Souzas.

[119] It seems difficult to accept that Ms. D’Souza simply forgot that she had signed and entered into a different contract for less money than the contact that she testified about in chief. Similarly, it is hard to accept that she forgot that Let It Rain ultimately did not have to do certain work such as mold remediation, which further reduced the price. The failure of Ms. D’Souza to mention the July 15 contract, the revised price, and the fact that the price was revised because some of the anticipated work was not required, undermines her credibility.

[120] Similarly, I found that the evidence regarding the contract with Let It Rain also undermines Mr. D’Souza’s credibility. He signed the Affidavit of Documents in November 2015. This was approximately four months after the July 15, 2015 contact was signed. Further, this was about two months after the D’Souzas had paid the invoice that showed the reduced cost. Yet neither the July 15 contract, nor the invoice, were included in the Affidavit of Documents. Mr. D’Souza said that they had changed lawyers, and that they had given all they had with respect to Let It Rain to their original lawyer. Even assuming that to be true, it is hard to accept that Mr. D’Souza did not notice that the contract that was included in the Affidavit of Documents was not the actual contract entered into. It is also difficult to accept that he failed to notice that the contract that they actually did enter into with Let It Rain, and the invoice that showed a further reduced price, were not included in the Affidavit of Documents.

[121] I turn now to consider the particular costs claimed by the D’Souzas in relation to the work done or anticipated to be done by Let It Rain.

a) The cost to repair the chimney

[122] The D’Souzas claim $900 for repairs that were done to the chimney. There is no dispute that their chimney had some damage; the issue is whether it stemmed from the roof job.

[123] Mr. Mike Murray, the owner of HD roofing, testified that the damage to the chimney was unrelated to the roofing job. Instead, he said that the damage appeared to be “spalling”, which is common in houses of similar age to the D’Souzas’ home. [8] Mr. Kronen also said that it is common to see spalling in homes of this age.

[124] Mr. Diplock, the independent investigator hired by the D’Souzas, testified that while he found spalling damage on the chimney, this damage was unrelated to the roofing job; spalling naturally occurs with age. Mr. Diplock also noted some cracks in the chimney cap. Again, he explained that this was not related to the roofing job.

[125] Given the totality of the evidence, in my view the D’Souzas have failed to establish on a balance of probabilities that any damage to the chimney was caused by the roofing job.

[126] That said, Mr. Diplock testified that ideally the bricks should have been repaired before putting on the flashing. Moreover, the flashing around the chimney was not done properly. This created an immediate risk of leaking that needed to be addressed. Mr. Diplock testified that if the flashing had been redone promptly after the roofing job, this would have significantly reduced the risk of leaking. This leaking issue was addressed by the emergency repairs conducted by Let It Rain, for which the defence agrees the D’Souzas should be compensated.

b) The cost to repair damage to the attic insulation

[127] When Mr. Diplock conducted his investigation on July 22, 2014, he noted that the insulation in the attic appeared disturbed. He testified that moving the existing insulation back could restore it to its pre-disturbed state.

[128] Mr. Levesque testified that Let It Rain addressed the situation by blowing in new insulation over the old insulation in the attic. The D’Souzas claim they are entitled to be compensated for this in the amount of $2,465. I disagree.

[129] As Mr. Levesque testified, by adding the new insulation, he brought the R-Value of the insulation from R-28 to R-60, which is above current standards of R-50. That is, the work done did not put the D’Souzas in the position they would have been if the insulation had not been disturbed, rather, they were put in a better position. Further, he used spray foam, a more expensive option than the original fiberglass insulation. Again, the D’Souzas cannot claim for the cost of betterment.

[130] Further, while it is clear that the insulation had been disturbed, in my view the D’Souzas have failed to establish that the roofers were responsible for two reasons. First, there were opportunities for the insulation to be disturbed by individuals other than the roofers. For example, Mr. D’Souza testified that one of the worker’s from Gable went into the attic. Thus, that is one potential cause of any displaced insulation.

[131] There is also some evidence to suggest that Mr. D’Souza went into the attic. In his examination for discovery, he testified that “There was one occasion, okay, that I did go into the attic for an exhaust vent hookup, okay?” In his evidence before me, however, he said that he did not actually go into the attic, and instead he simply poked his head through the attic door to “take a peak”. This explanation seemed difficult to reconcile with his evidence at the discovery. His evidence there suggests that he did go into the attic. If so, then he could have caused the insulation disturbance. Ms. D’Souza was also asked at her examination for discovery about her husband going into the attic. She responded by saying, “We visit the attic very often, once a year at least to see if everything is rosy inside.” At trial, Ms. D’Souza said that she did not mean that her husband went into the attic, instead he only poked his head up through the attic hatch, like a “gofer”. Again, her evidence at trial seemed inconsistent with her earlier testimony. Moreover, it seems odd that both D’Souzas would testify at the examination for discovery in a manner that suggested that Mr. D’Souza went into the attic, if in fact, he never went into the attic. Based on their changing evidence, it seems that Mr. D’Souza may well have gone into the attic. If so, he could have caused any disturbed insulation issues.

[132] Second, there is no independent evidence to corroborate the D’Souzas’ testimony that anyone associated with the roofing job went into the attic. While Ms. D’Souza claimed that she heard people scurrying in her attic on June 27, 2014, she ultimately admitted that she did not actually see anyone in her attic. Andrew Herron with Newfoundland Roofers denied that his crew ever went into the attic. Further, Reginald Burns, then the vice-president of HD Roofing, testified that roofers do not normally go in the attic. Further, although Mr. D’Souza claimed that Mr. Kronen went into the attic, Mr. Kronen denied that, noting that he never goes into attics. For reasons that I have set out above, I found Mr. Kronen to be a more credible witness than the D’Souzas.

[133] Based on the totality of the evidence before me, I find the D’Souzas have failed to establish on a balance of probabilities that the disturbed insulation in the attic was related to the roofing job.

[134] That said, there was some insulation around the skylight that may have been wet. Mr. Burns estimated it would cost $100 to $150 to replace the wet insulation around the skylight. Given the evidence of Mr. Smith that the leaking around the skylight was exacerbated by the negligent roof job, I find that the D’Souzas are entitled to be compensated for $100 to replace the wet insulation.

c) Anticipated cost to repair damage to the eaves troughs

[135] The D’Souzas argue that they should receive $4,225 (plus HST) for the anticipated cost to have Let It Rain repair their eaves troughs. The D’Souzas said that they had put in new eaves troughs close in time to when the roof was done, thus, any damage to the eaves troughs must have been related to the roof work. I note that they presented no evidence as to precisely when the eaves troughs were installed. Putting that aside, the issue before me is whether the D’Souzas have established on a balance of probabilities that any damage to the eaves troughs was caused by the roofing job. In my view, they have failed to do so for three reasons.

[136] First, there is no mention of any damage to the eaves troughs in any of the emails sent around the time of the roofing job. In an email sent by Mr. Burns at 6:36 a.m. on July 10, 2014, he summarized the issues found with respect to the roofing job, and which Home Depot would like to return to fix. While Mr. Burns noted that the eaves troughs should be cleaned out as some nails and small bits of debris were found, he made no mention of any damage.

[137] In a responding email sent by Ms. D’Souza to Mr. Burns on July 20, 2014 at 12:33 p.m., she agreed that there were pieces and debris left in the “gutters”. But she did not raise any issue about dented or damaged eaves troughs. Given how vocal the D’Souzas were about raising issues with the roofing job, it seems odd that she would not have mentioned anything about dented eaves troughs if they were in fact damaged by the roofers.

[138] Second, and more importantly, Mr. Diplock - who conducted an independent investigation of damage caused by the roofing job - did not observe any damage to the eaves troughs. Given that his task was to identify damage caused by the roofing job, it seems quite odd that he did not identify damage to the eaves troughs if any existed at that time.

[139] Third, even if there was damage to the eaves troughs that Mr. Diplock simply missed and that Ms. D’Souza forgot to put in her emails, Mr. D’Souza said that workers from Gable went on the roof at least two times. Thus, there is a potential that any damage to the eaves could have been caused by those workers.

[140] Given the totality of the evidence, in my view the D’Souzas have failed to establish on a balance of probabilities that any damage to the eaves troughs was caused by the roofing job.

d) Anticipated cost to replace the soffits and fascia

[141] There is no dispute that the soffit vents were partially covered with insulation, which led to problems with venting. There is also no issue that the soffits and fascia were soft and rotting. The D’Souzas allege that this is related to the roofing job. Let It Rain estimated that it would cost $4,880 (plus HST) to do all new aluminum soffits and fascia. [9] The D’Souzas claim that they are entitled to this amount. In my view, however, the evidence falls short of establishing that the roofing job caused the issues with the soffits and fascia.

[142] Mr. Diplock testified that he found the ventilation in the attic to be inadequate and noted that the soffits were partially blocked. He explained, however, that this could have been as a result of the original construction. Mr. Diplock could not say that this problem was caused by the roofing job.

[143] Mr. Smith testified that the most probable explanation for the condition of the soffits is that they were that way at the time of the original installation. Mr. Smith also noticed issues with the “J trim”, which is part of the soffit installation. Again, however, Mr. Smith found that this was related to the original installation and had nothing to do with the roofing job.

[144] In my view, the evidence adduced is insufficient to establish on a balance of probabilities that the roofing job caused the damage to the soffits and fascia.

e) The cost to replace all of the aspenite boards

[145] Let It Rain removed all existing aspenite boards and replaced them with 70 sheets of half inch plywood boards, a more expensive type of board. [10] The D’Souzas claim that all of their existing aspenite boards had to be replaced, as the roof was sagging and the boards were rotted. They are seeking $4,480 (plus HST) for the cost of replacing all of the boards. In my view, however, the evidence does not support that all of the boards had to be replaced as a result of the roofing job.

[146] With respect to the claim that the roof was sagging, in my view the D’Souzas have failed to establish on a balance of probabilities that any such sagging was related to the roofing job. Mr. Diplock testified that he saw sagging when he looked at the roof in July 2014. But he also testified that the roof was sagging in part because it did not have any H-clips, which were not put on by the original builders: this omission was a contributing factor to the sagging roof structure. Moreover, Mr. Diplock, who conducted his investigation in July 2014, said that the sagging he observed would not have happened “within the last month”. Thus, on his evidence, the sagging could not have occurred because of the roofing work done in June 2014.

[147] Mr. Smith also testified that the missing H-clips (an issue related to the original construction and not the roofing job) would have affected the roof and led to sagging. Moreover, while it is true that the roofers left bundles of shingles on the roof, Mr. Smith testified credibly that the way the bundles of shingles had been left on the roof (as depicted in the photos) would not have led to any sagging of the roof, nor any waviness.

[148] In relation to the claim that the all of the aspenite boards were rotted and had to be replaced, I also find that the D’Souzas have failed to establish this claim.

[149] When Mr. Diplock investigated the D’Souzas’ home in July 2014, he saw some damaged aspenite boards near the skylight. Other than that, Mr. Diplock found that the aspenite boards were fine. Mr. Diplock did not note any damage to any other boards, which he testified he would have done if he had discovered damage.

[150] Mr. Francis said that when he attended on June 25, 2015, he did not notice any spongy areas, which would indicate water damaged decking. That said, he did not walk very close to the skylight or exhaust vent where Mr. Diplock had noticed some damage to the boards.

[151] Mr. Levesque with Let It Rain conducted a roof inspection in October 2014 and noticed soft wood by the skylight and exhaust fan. He did not find problems with the wood in other parts of the roof. Mr. Levesque attended again to check the roof in July 2015. Again, he did not find any soft wood in any areas except by the skylight and exhaust fan.

[152] Mr. Levesque, however, testified that when they did the roof in October 2015 they discovered that additional boards were rotted and had to be replaced. Mr. Levesque testified credibly that it was only upon ripping up the roof that they discovered the extent of the damaged wood. I accept that some boards were damaged because of issues with the roofing job. That said, in my view there are two problems with the submission that the D’Souzas are entitled to be compensated for the cost of having every board replaced.

[153] First, as will be set out in more detail below in my discussion on punitive damages, Home Depot offered to fix the deficiencies in the roofing job. The D’Souzas refused to have these repairs done. It seems probable that if they had allowed these repairs to be done in a timely way, that any damage to the boards would have been minimized.

[154] Second, it was unclear from Mr. Levesque’s evidence how many boards were rotted and thus had to be replaced. He agreed in cross-examination that aspenite boards around the skylight were in the worst shape and that the other boards were not as bad. He agreed that the aspenite boards above the garage were in good shape. Moreover, the photos contained at exhibits 3A and 3B showed boards that were not soft or spongy, which suggests that not all of the boards were water damaged.

[155] Thus, while I accept that some of the boards had to be replaced, I find that the D’Souzas have not established that all of the boards had to be replaced.

[156] In my view, the D’Souzas have established that they should be compensated for the cost of 35 boards, at $60 a board, for total of $2,100 (plus HST). I have determined that $60 per board is appropriate, as the plywood used by Let It Rain cost approximately $4 more per sheet than the aspenite boards that were replaced. Again, the D’Souzas are entitled to be put in the position they would have been in but for the roofing job, they are not entitled to be put in a better position.

f) The cost to repair broken rafters on the garage

[157] The D’Souzas paid Let It Rain $695 (plus HST) to repair broken rafters on the garage. There was no evidence before me to suggest how the rafters became broken, let alone that the roofing job was responsible for this damage. The D’Souzas have failed to establish on a balance of probabilities that they should be compensated for this cost.

g) The cost to have Let It Rain replace the roof

[158] The D’Souzas claim that they are entitled to be compensated for the amount they paid to Let It Rain to replace their roof (minus the money that they would have spent on a roof with Home Depot). The defence argues that the D’Souzas are only entitled to be compensated for the lost benefit of the 15% discount they had with Home Depot, which amounts to $1,796.19. I agree with the defence, as the roof that the D’Souzas purchased from Let It Rain had numerous upgrades from the roof that the D’Souzas initially purchased from Home Depot. For example:

• Let It Rain installed Deck Armour, rather than the asphalt saturated felt paper provided for in the contract entered into with Home Depot and ultimately used by Newfoundland Roofers;
• Let It Rain installed a drip edge. This was not part of the contract entered into between Home Depot and the D’Souzas;
• Let It Rain installed an ice and water shield up to 6’, which was more expensive than the up to 3’ ice and water shield provided for in the contract entered into between Home Depot and the D’Souzas;
• Let It Rain installed three additional new roof vents;
• The D’Souzas got the Golden Pledge Warranty, a higher end warranty than the one they purchased with Home Depot.

[159] The D’Souzas are entitled to be put in the position they would have been but for the negligent roofing job; they are not entitled to be put in a better position. But the roof they got from Let It Rain was better than the one they contracted to get from Home Depot. As a result, as it relates to the roof installed by Let It Rain, I find that the D’Souzas are only entitled to be compensated for the lost benefit of the 15% discount they had with Home Depot.

Claims for Other Damages

[160] The D’Souzas submit that they are entitled to general, aggravated and punitive damages. [11] Mr. D’Souza also argues that he is entitled to damages for loss of income. I will address each claim in turn.

a) Are the D’Souzas entitled to general damages?

[161] The D’Souzas both argue that as a result of breach of contract and the negligent roof job, they have suffered mental distress that rises to a compensable level.

[162] Dealing first with the claim for general damages related to claims of breach of contact. Before damages for mental distress can be awarded for breach of contract, the contract must be one where peace of mind is what is being contracted for. As explained by Feldman J.A. for the court in Turczinski v. Dupont Heating & Air Conditioning, , [2004] O.J. No. 4510 (ONCA), at paras. 28 and 29, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 581:

Certainly, when a homeowner contracts for repairs or renovation to the home, one of the main issues for the homeowner is that the contract be carried out on time and with as little disruption and aggravation as possible. In that sense one could say that one element of every consumer contact is piece of mind. But in my view, that is not the intent of the rule.

In a contract for home improvements, the matter being purchased is the installation of the improvements. Although they will be enjoyed eventually and give pleasure to the homeowner, realistically one expects some disruption during renovations, not a stress-free time.

[163] The contract between the D’Souzas and Home Depot was not a peace of mind contract and they are not entitled to general damages for any alleged breach of contract.

[164] Dealing next with the claim for general damages for the negligent roof job, I find that the D’Souzas are not entitled to general damages for three reasons.

[165] First, as set out above, I have found that that the D’Souzas have failed to establish many of their claims on a balance of probabilities. For example, they have failed to establish that the vast majority of the damage in the en suite bathroom or any damage in the dining room, the bedrooms, or the main bathroom are related to the roofing job. Thus, to the extent that their claims for general damages are premised on the allegation that the roofing job caused those damages, their claims cannot prevail.

[166] Second, on a claim for psychological or emotional harm arising from a tort, the plaintiff bears the onus of proof of establishing that it would be reasonably foreseeable that a person of ordinary fortitude would have suffered a serious injury of that type: Capelet v. Brookfield Homes (Ontario) Ltd., 2018 ONCA 742, at para. 11. In this case, the D’Souzas have adduced no evidence with respect to what a person of ordinary fortitude would have suffered.

[167] Third, as noted in Mustapha, at para. 9:

The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.

[168] As it relates to Mr. D’Souza, while he said he suffered from stress and depression, he acknowledged that it was never such that he had to see a doctor or seek any help. He did not require any medication. Moreover, he said that his stress levels improved after Let It Rain did its emergency repairs in October 2014. His stress levels got even better after Let It Rain redid the roof in October 2015. On Mr. D’Souza’s own evidence, any mental distress he suffered from the roofing job was neither serious nor prolonged.

[169] As it relates to Ms. D’Souza, she did say that she continues to suffer from stress and anxiety to this day. She also said that she had participated in counselling with her doctor. That said, I have difficulty accepting that Ms. D’Souza suffered mental distress or health issues to the extent she claims. According to the D’Souzas, after Let It Rain did their emergency repairs in October 2014, the leaking issues were largely resolved. Thus, the most significant period of leaking would have been from July 2014 to October 2014. Yet at no time during those months, did Ms. D’Souza go to see her doctor at all.

[170] The first time Ms. D’Souza went to see her doctor after the roofing job was in November 2014. Her doctor’s clinical notes say that she went to see her doctor for a viral respiratory infection. Her doctor’s notes do not say anything about Ms. D’Souza raising concerns about breathing because of mold, nor do they indicate that Ms. D’Souza said anything about feeling stress or anxiety. Ms. D’Souza attended at her doctor’s office a number of times thereafter, but there is no indication in the notes that she made any complaint about issues related to the roofing job until February 2017, which was after the first examination for discovery in this matter.

[171] Ms. D’Souza claims that she did tell her doctor about issues she was having because of the roof, such as stress, breathing problems and skin rashes. I find it difficult to accept, however, that her doctor would have repeatedly failed to note health complaints Ms. D’Souza was raising as a result of the roofing job. This is especially so because her doctor noted that in June 2014 (before the roofing job), Ms. D’Souza told her that she was feeling stress because of issues with her husband. Why would her doctor then fail to note Ms. D’Souza telling her, more than once, that she was suffering stress and other issues because of the roofing job?

[172] As I have noted in these reasons, I have some concerns with Ms. D’Souza’s credibility. I have already detailed numerous aspects of her evidence that have caused these concerns. Given that, and the lack of any contemporaneous note from her doctor about any stress, anxiety or other medical issues she was suffering because of the roofing job, I find that Ms. D’Souza has failed to establish on a balance of probabilities that she has any compensable mental distress or health issues related to the roofing job.

b) Are the D’Souzas entitled to aggravated damages?

[173] Aggravated damages are compensatory. They are awarded where the damage was aggravated by the manner in which the act was committed. They take into account intangible injuries such as increased psychological harm, distress, humiliation, indignation, grief, fear and other such emotions: Vorvis v. Insurance Corp. of British Columbia, , [1989] 1 S.C.R. 1085, at pp. 1098-1099; and Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 116. Aggravated damages are not a separate head of damages, but rather a reflection of any aggravating features that serve to increase an award accordingly: Zando v. Ali, 2017 ONSC 1289, aff’d 2018 ONCA 680, at para. 99.

[174] Given my findings with respect to general damages, there is no basis for aggravated damages. That is, there is no damage award to be augmented.

[175] In any event, in my view the evidence referenced in support of aggravated damages does not support such an award. Ms. D’Souza testified that she felt entitled to aggravated damages, as the workers acted like “cowboys”. Both Ms. D’Souza and Mr. D’Souza testified at great length about the complaints they had about the roofing job. The workers left stacks of shingles outside for days, exposed to the rain because the shrink wrap was ripped. The workers were young; they were “rookies” and “cowboys”. There were so many young people it was like having “termites” on the roof. The workers did not bring the proper size garbage bin. The workers did not put protective tarps on the garden or lawn until prompted to by the D’Souzas. The workers failed to put protective boards on the garage doors. The workers did not wear Home Depot coveralls or hard hats. The workers left for the long weekend after stripping off the shingles, when the roofing job was incomplete.

[176] Despite hearing a litany of complaints from both D’Souzas about the workers I cannot accept that they are entitled to aggravated damages for these complaints for three reasons.

[177] First, these complaints did not lead to any actual damages. For example, the D’Souzas were unhappy that the roofing job was so delayed that it could not be done in the fall of 2013 and instead was done in June 2014. [12] But because of the tarp that Gable put on the roof, this delay did not lead to any damage to their home. By way of another example, while the D’Souzas were upset that the shrink wrap on the bundles of shingles were ripped, the bundles of shingles underneath the shrink wrap were also covered in plastic wrap, and Mr. D’Souza agreed that only a “few” shingles may have been exposed. He further agreed that he could not say that any shingles got wet.

[178] Moreover, while the D’Souzas were clearly upset that the workers left the roof unfinished over the course of the long weekend, Ms. D’Souza said that no water seeped into the house during this time. Further, while it was no doubt frustrating for the D’Souzas to have to tell the workers to use tarps to protect their property, or to have the workers bring the wrong size garbage bin, or to deal with the other complaints they had about the workers, these issues did not lead to any actual damage to their property. The D’Souzas’ newly stained deck was fine. The D’Souzas garden was fine. Their garage door was fine. Their windows were fine. While it took extra time for the garbage to be taken away because of the small bin, the garbage was removed.

[179] Second, in an email sent by Ms. D’Souza on July 10, 2014 at 11:46 p.m., she wrote that the crew who did her roof were “good persons and honest hardworking people.” This comment seems difficult to reconcile with her position that the workers acted in such a malicious manner that it would warrant aggravated costs.

[180] Third, Ms. D’Souza testified that after the workers were finished, she tipped them $40. If the manner in which the workers conducted themselves was so outrageous as to warrant aggravated damages, it seems unlikely that Ms. D’Souza would have tipped them. That is, to the extent that the D’Souzas suffered any mental distress related to these above noted issues, in light of the tip, I find that such distress was not significant in depth or duration. Whatever upset they suffered at the outset had diminished sufficiently such that Ms. D’Souza thought a tip was warranted.

c) Are the D’Souzas entitled to punitive damages?

[181] I find that the evidence advanced is woefully inadequate to support a claim for punitive damages. Punitive damages are non-compensatory. They are an exceptional remedy restricted to conduct that is so harsh, vindictive, reprehensible and malicious that it is deserving of punishment on its own. The purpose of punitive damages is to denounce, deter and punish. In awarding punitive damages, the focus is therefore on the defendant’s conduct, not the plaintiff’s loss: Honda Canada Inc. v. Keays, 2008 SCC 39, at paras. 62-78; Vorvis, at pp.1104-1105; 1108; Whiten, at paras. 69, 73: Hill v. Church of Scientology of Toronto, , [1995] 2 S.C.R. 1130, at pp. 1208-1209; and Zando, at para. 100.

[182] The D’Souzas claim in their written submissions that they are entitled to punitive damages because Home Depot was deceitful about that fact that a service provider or subcontractor would be doing the work. For the reasons set out above, I cannot accept this claim. The contract clearly specified that service providers would do the work and that subcontractors may be used. The contract was not ambiguous. Mr. Kronen did not mislead the D’Souzas in any way. There was no deceit.

[183] Further, the D’Souzas argue that they are entitled to exemplary damages because Home Depot refused to agree that any repairs would be in accordance with the Golden Pledge Warranty. But as I have set out above, I do not accept that Mr. Kronen promised them this warranty; the contract they entered into specified a Systems Plus Warranty.

[184] Moreover, in my view Home Depot tried to address the concerns of the D’Souzas in a professional way. The emails tendered in this matter show that the defendants tried repeatedly, and in a polite and apologetic manner, to deal with the D’Souzas’ complaints. I do not intend to detail the entire history of offers made by the defendants but will point to a few to highlight the efforts made.

[185] On July 8, 2014, Reginald Burns, then the vice-president of HD Roofing, offered to re-attend to fix the flashings, valley and caps. Mr. Diplock testified that out of the issues he identified when he examined the home in July 2014, the only items that presented immediate leak risks were the flashings around the chimney and skylight and the exposed fasteners. Mr. Burns’ offer would have addressed any leak hazards.

[186] On July 10, 2014, Mr. Burns provided a more specific proposal to fix the skylight flashing, to fix the chimney flashing, to clean the eaves troughs, to redo the caps and to even out the valleys.

[187] On July 15, 2015 at 4:04 p.m. Mr. Burns wrote the following email to Ms. D’Souza:

Ok, I can easily hold off as long as you want, but eventually you’ll want this work done and this work won’t cost you a cent, as this is all covered under your warranty. I just thought that the sooner we got it done, the sooner your home will look like it should. The new valleys and flashing I intend to change will make a big difference.

And sorry again for the inconvenience this is causing you and Allen, and for the lack of confidence you now feel. Deficiencies are a fairly common part of the construction process and that is why I have guys like Zelco and Peter inspecting jobs. They catch these things and make sure they get brought up to Home Depot’s standards. For your home, I’ve taken your comments to heart and have arranged to have Peter and Zelco do the repairs personally, so that I (and you) are guaranteed the very best workmanship.

I can vouch for both of these men and their attention to detail is exactly what you are looking for. Especially with the metal work, which is the major part of our deficiency repairs.

Let me know when you are ready, and I am looking forward to regaining your trust.

[188] On July 17, 2014, Mr. Reid Goulden, with Peak Installations (the national service provider for roofing, windows and doors for Home Depot), offered to do even more to address the complaints raised by the D’Souza. He encouraged the D’Souzas to let them conduct the repairs before the D’Souzas had an independent evaluation of the roof, as “this will permit your inspector to look at the corrected work rather than needing to document all the corrections we’re already aware of and intent on performing for you.”

[189] Then on August 8, 2014, Mr. Paul Windebank, a District Service Manager with Home Depot, sent the D’Souzas a comprehensive scope of work proposal. This proposal offered to address numerous issues and complaints raised by the D’Souzas (including issues that I have found the D’Souzas have failed to establish were related to the roofing job). In particular, Home Depot offered to:

• Replace damaged sheathing and add H-clips;
• Put in a new underlayment;
• Put in a drip edge;
• Completely reshingle the roof;
• Redo the valleys and flashing;
• Install a new skylight;
• Have the chimney repaired by a mason;
• Let counter-flashings into mortar if notch is present;
• Replace the insulation in areas of water infiltration;
• Repair the bathroom ceiling; and
• Replace any damaged sections of the eaves trough.

[190] The D’Souzas refused to let Home Depot make the offered repairs.

[191] Then, when the D’Souzas obtained an estimate from Let It Rain for $36,000, Home Depot offered them $21,000 to put towards this cost. This offer was characterized as an effort to deal with difficult clients. The D’Souzas also rejected this offer.

[192] Given the above history, the D’Souzas’ claim that Home Depot dealt with them in a high-handed and spiteful manner is simply not born out. There is nothing in the conduct of the defendants or the third party that would justify punitive damages. They did not act in a harsh, vindictive, reprehensible or malicious manner; to the contrary, in my view they acted professionally in trying to address the D’Souzas’ concerns.

d) Mr. D’Souza’s alleged income loss

[193] Mr. D’Souza claims that he missed approximately 24 days of work because of issues related to the negligent roofing job and that he is entitled to be compensated for income loss. In a loss of income statement filed as Exhibit 26, Mr. D’Souza claimed that he was entitled to be compensated for a total of $20,340. [13] The defendants and the third party argue that Mr. D’Souza has failed to establish on a balance of probabilities that he suffered income loss related to the roofing job. I agree. In my view the evidence falls woefully short of establishing Mr. D’Souza’s purported income loss.

[194] Mr. D’Souza refused to answer basic questions about his employment. What exactly did he do? That he would not say. Mr. D’Souza said he had to come home often to deal with the leaks. But since he refused to say what kind of work he did, it is impossible to say whether he would have been able to work from home. Given email and cell phones, many types of work can be done from home. It would only take a minute to put a bucket under a leak; why could he not work after doing that? Since he would not reveal what was involved with his work, it is impossible to evaluate his claim that he lost so much income because of his need to be home.

[195] Mr. D’Souza did file a letter from Pushpal Basu, the President of Koni Ameri Tech Services (Canada) Inc., who wrote that Mr. D’Souza worked for the company as an independent consultant. He further wrote that Mr. D’Souza frequently had to be away from work to deal with urgent botched roofing issues and that he was not paid for time taken off of work. But this evidence was of limited assistance. Mr. Basu did not attend to provide viva voce evidence, and the letter provides little information. As with Mr. D’Souza’s evidence, the letter does not explain the type of work that Mr. D’Souza did and why it could not be done from home.

[196] In any event, as set out above, I have determined that many of the D’Souzas’ claims about leaking in their home caused by the roofing job have not been established. Given that, even if I accepted that Mr. D’Souza missed work to deal with roof and leaking issues, many of those issues have not been proven to be related to the roofing job.

[197] Looking at the totality of the evidence, I find that Mr. D’Souza has failed to establish on a balance of probabilities that he suffered income loss as a result of the negligent roofing job.

C) Conclusion

[198] The D’Souzas have established on a balance of probabilities that they are entitled to the following:

• $1,796.19 ($1,589.55 plus HST) to account for the lost benefit of the 15% discount offered by Home Depot, which was not offered by Let It Rain;
• $565 ($500 plus HST) for the emergency repairs done by Let It Rain;
• $113 ($100 plus HST) to replace wet insulation around the skylight;
• $2,373 ($2,100 plus HST), to replace 50% of the aspenite boards;
• $925.19 ($818.75 plus HST) which is 25% of the estimated cost to have Let It Rain fix the ceiling damage in the en suite bathroom.

[199] Thus, I find that the D’Souzas are entitled to total damages in the amount of $5,772.38 ($5,108.30 and $664.08 HST), payable by the defendants within 60 days.

D) Costs

[200] I encourage the parties to see if they can agree on costs. If the parties are unable to agree on costs, the plaintiffs shall serve and file with my office written costs submissions within 15 days. The defendants and the third party shall serve and file with my office any costs submissions within 15 days thereafter. These written submissions shall not exceed five pages in length, excluding the Costs Outline. Finally, any party wishing to make reply or responding submissions shall file their submissions within 15 days thereafter. These written submissions shall not exceed five pages in length.

Justice Heather McArthur

Released: April 17, 2019.

COURT FILE NO.: CV-15-534729 DATE: 20190417

ONTARIO SUPERIOR COURT OF JUSTICE

ALLAN D’SOUZA and LORRAINE D’SOUZA Plaintiffs – and – HOME DEPOT OF CANADA INC. and HD ROOFING INC. Defendants – and – 1886466 ONTARIO INC. o/a NEWFOUNDLAND ROOFERS Third Party

REASONS FOR DECISION

H. McArthur J.

Released: April 17, 2019.

Footnotes:

[1] Newfoundland Roofers filed a Third Party Defence to the Main Action on September 26, 2017. I was advised at the outset of this trial that the action between the defendants and the third party is to be heard separately from this action.

[2] The D’Souzas received a 15% discount, which brought the price down from $8,982 (plus HST).

[3] The D’Souzas received a 15% discount on the new skylight, reducing the price from $1,100 to $935 (plus HST).

[4] Mr. Mike Diplock with Mike Holmes Inspections also attended at the D’Souzas’ home on July 22, 2014 to investigate any damage. Mr. Diplock did not refer to any damage to the bedrooms. That said, the D’Souzas said that the water damage occurred a few months or a month or two later, so it is possible that the damage occurred after Mr. Diplock attended.

[5] The D’Souzas received a 15% discount from Home Depot on the price of the roofing job, the new skylight, wall flashings and three wood sheets.

[6] Although it was the same contract, there were differences. In the contract filed as Exhibit 2, Ms. D’Souza had made handwritten additions. Specifically, she noted the costs of replacing the aspenite boards for $64 dollar per sheet for a total of $5,847.75 and $565 for emergency repairs.

[7] T-Rex is a brand of eaves trough grate or cover.

[8] Mr. Murray testified that he offered to have the chimney repaired for the D’Souzas as a goodwill gesture. The D’Souzas, however, refused to have the mason hired by Mr. Murray to repair the chimney do the work, as he was not going to use scaffolding.

[9] This would be in addition to the cost to replace the eaves troughs: see Exhibit 18(a).

[10] While plywood costs approximately $64 a board, aspenite costs approximately $60 a board. The aspenite boards were also referred to as chip boards and oriented strand boards, or OSB.

[11] In paragraph 173 of their written submissions filed on November 23, 2018, the D’Souzas only noted that they are seeking general damages. In written submissions filed December 7, 2018, however, they advance arguments in support of both aggravated and punitive damages.

[12] The D’Souzas signed the contract on September 25, 2013. The contract specified that the roofing job would be done in two to three weeks, weather permitting, but that the commencement date may be extended due to circumstances beyond Home Depot’s control. The D’Souzas were advised that the job was ready to proceed as of October 17, 2013. This was exactly three weeks after the contract was signed. Ms. D’Souza then asked for the job to be delayed until the following summer, as she believed that it was too cold to re-shingle the roof.

[13] Mr. D’Souza claims $18,000 (for 24 days x $750) plus $2,340 for 13% HST, for a total of $20,340.